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HE WHO ASSERTS A FACT HAS THE BURDEN TO PROVE THOSE FACTS

Dictum

The appellants in their petition desired the Tribunal to give judgment to them granting them the reliefs they claimed on the basis that the facts they assert in their petition exist. Therefore, they had the primary legal burden to prove the existence of those facts by virtue of S.131(1) of the Evidence Act 2011 which provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must” prove that those facts exists.”

— E.A. Agim, JSC. Oyetola v INEC & Ors. (2022) – SC/CV/508/2023

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BURDEN OF PROOF WHERE PARTY ALLEGES THE NEGATIVE

DASHE & ORS V DURVEN & ORS (2019) LPELR-48887 where my learned brother Ugo, JCA held: “While it is true that the burden of proof is generally on the person who substantially asserts the positive of an issue, and not on the person who makes a negative assertion, there is a caveat to that principle to the effect that where a negative assertion forms an essential part of a plaintiff’s case (as it evidently is in the case of the appellants) the burden of proof of such allegation rests on him. The law on this point was lucidly stated by Bowen L.J. in Abrath v. N.E. Railway. Co 11 QBD 440 at 457 when he said that: “Now in an action for malicious prosecution, the plaintiff has the burden throughout of establishing that the circumstances of the prosecution were such that the Judge can see no reasonable and probable cause for instituting it. In one sense that is the assertion of a negative, and we have been pressed with the proposition that, when a negative is made out, the onus of proof shifts. That is not so. If the assertion of a negative is an essential part of a plaintiff’s case, the proof of the assertion still rests upon the plaintiff. The terms’ negative and affirmative’ are after all, relative, and not absolute.” ?See also Phipson on Evidence, 15th Edition, Paragraph 4.03 at page 56; The Article Burden and Standard of Proof, by Justice Niki Tobi in Chief Afe Babalola’s Law & Practice of Evidence in Nigeria, and Muraina & Ors v. Omolade & Ors (1968) 359 @ 362. See also Sections 131, ?132 and 133 of the Evidence Act 2010 stating that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist; that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given, and that in civil cases, the burden of first proving existence or non-existence offact lies is on the party against whom judgment would be given if no evidence were produced on either side.”

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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BURDEN OF PROOF IS ON PROSECUTION TO ESTABLISH MURDER

It is however settled law that it is the duty of the prosecution to establish or prove the charge/case against an accused person. In other words, it is the prosecution that bears the burden of proving the guilt of the accused person. For the court to come to the conclusion that the prosecution has discharged the burden placed on it by law, it must be satisfied that the conclusion is beyond reasonable doubt as it is settled law that any doubt existing in such a case must be resolved in favour of the accused person. In other words, the standard of proof in criminal trials is that of prove beyond reasonable doubt.

— Onnoghen, JSC. Njoku v. The State (2012)

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WHEN PLAINTIFF’S BURDEN IS MINIMAL

It is settled law that where the party offers no evidence in defence of the case of the plaintiff, the burden placed on the plaintiff is minimal, since there is no evidence to challenge the case of the plaintiff and the plaintiff can use the unchallenged evidence to establish his case. – Onnoghen JSC. Chami v. UBA (2010)

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BURDEN OF PROOF ON HE WHO WILL FAIL

In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

– Niki Tobi, JSC. Calabar CC v. Ekpo (2008)

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PROOF OF DELIVERY OF DOCUMENT

Agbaje v. Fashola (2008) 6 NWLR (Pt. 1082) 90 at 142. “Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by: (a) dispatch book indicating receipt; or (b) evidence of dispatch by registered post; or (c) evidence of witness, credible enough that the person was served with the document.”

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PLAINTIFF SUCCEEDS ON THE STRENGTH OF HIS CASE

It was the appellants herein as plaintiffs that desired that the trial Court grant the reliefs they claimed for on the basis that the facts they assert in their pleadings exist and it is their case that will fail if they fail to adduce evidence to prove the existence of those facts. They can only secure the favourable Judgment they desire on the strength of their case as established by legal evidence and not on the weakness or absence of a defence. Therefore, the legal burden to prove the said facts upon which the success of their case depends rests squarely on them by virtue of S.s 131, 132 and 133 (1) and (2) of the Evidence Act 2011.

– Agim JSC. APC v. Obaseki (2021)

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